Managing and Protecting our Historic ... - Historic Scotland

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14 | Managing and Protecting our Historic Environment What is Changing? Retrospective SMC Under the present legislative arrangements, there is no legal mechanism to allow for the issue of SMC for work already carried out on a scheduled monument. In certain limited circumstances it may be appropriate and in the best interests of the scheduled monument to retain certain unauthorised works, e.g. where reversal of an intervention would be likely to lead to further damage of the monument. The Act will enable Historic Scotland to issue retrospective SMC for the retention of unauthorised works in line with the model used in planning. Power of entry on land where monument at risk The Act will enhance the powers available to enable a person authorised by the Scottish Ministers to excavate for the purpose of archaeological investigation without the need for consent from the owner in certain rare circumstances, e.g. when a monument is at risk of imminent damage or destruction. Scheduled monument enforcement notices, stop notices and temporary stop notices Scheduled monument enforcement powers There are no provisions in the 1979 Act for enforcement and remedy where works have taken place on a scheduled monument without SMC (although it is an offence and prosecution can take place). Equally, if unauthorised works are taking place and causing damage to a scheduled monument, there is currently no legal mechanism to stop them quickly, other than by way of an Interim Interdict. The Act will introduce new powers to enable Scottish Ministers to serve scheduled monument enforcement notices, complemented by stop notices or temporary stop notices. Scheduled monument enforcement notice A scheduled monument enforcement notice will allow for the reversal or amelioration of unauthorised works to a scheduled monument, or works in breach of any condition attached to SMC. The enforcement notice cannot take effect until at least 28 days after the notice has been served. The Act therefore also introduces stop notices and temporary stop notices, which can stop unauthorised works to a scheduled monument more quickly. Stop and temporary stop notices A stop notice will come into effect not less than three and no more than 28 days after it was issued, unless Scottish Ministers consider there are special reasons to justify it taking effect immediately, and must accompany or follow an enforcement notice. Unlike a stop notice, a temporary stop notice can be issued even if no scheduled enforcement notice has been issued and will effect an immediate halt to unauthorised works. A temporary stop notice can only be in effect or be in force for a maximum 28 days to enable the most appropriate enforcement action to be considered and undertaken during this time. The provisions are based on the planning model.
The Historic Environment (Amendment) (Scotland) Act Explained | 15 1 1. Dryburgh Abbey, Scottish Borders 2. Searchlight Battery, Cloch Point, Inverclyde 2 Defences and offences Under the present legislative arrangements, it is a defence under the 1979 Act to prove that certain unauthorised works to a scheduled monument were carried out in ignorance that it was scheduled or that the scheduled monument was in an area affected by the works. The Act allows lack of knowledge only to be used in defence where a person can show they took all reasonable steps to find out whether there was a scheduled monument in the area affected by the works. Fines The Act increases the maximum level of fines from £10,000 to £50,000 on summary conviction for causing or permitting to be executed any unauthorised works to a scheduled monument or for failure to comply with any condition attached to a SMC. This aligns with penalty levels in other legislation of a similar character. The most recent comparable legislation, the Marine (Scotland) Act 2010, which deals in part with marine historic assets, introduces maximum fine levels of £50,000. Definition of monument The definition of monument is being extended to include ‘any site comprising any thing, or group of things, that evidences previous human activity’. This will allow Scottish Ministers to extend the range of historic environment assets that can be designated under the 1979 Act, for example, scatters of flint tools which mark the sites of some of the earliest human occupation in Scotland.
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Managing and Protecting our Historic ... - Historic Scotland

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